McLaughlin v McDaid

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 10 December 2015
• Neutral Citation: [2015] IEHC 810
• Docket Number: [2004 No. 5848P]
• Court: High Court
• Date: 10 December 2015

BETWEEN

DAVID MCLAUGHLIN

PLAINTIFF

-AND-

DAMIEN MCDAID, MICHAEl MCDAID, CHARLES MCDAID, MCDAID

AND MCDAID QUARRY

DEFENDENTS

[2015] IEHC 810

[2004 No. 5848P]

THE HIGH COURT

Tort – Damages & Restitution – Injury-on-work – Damages – Quantum of damages – The Mines and Quarries Act, 1965 – S. 26 of the Civil Liability and Courts Act 2004

Facts: The plaintiff sought an order for damages against the defendants for a serious injury caused to the right foot of the plaintiff while operating the machinery in question in the quarry owned by the defendants. The defendants also sought an order for dismissal of the plaintiff's claim under s. 26 of the Civil Liability and Courts Act 2004 for giving false and misleading evidence.

Mr. Justice Hanna awarded the damages to the plaintiff for pain and suffering caused till date and into the future. The Court considered the expenses incurred by the plaintiff for his medical treatment and the loss of employment for the period in which he was injured. The Court found that there was a breach of statutory duty on the part of the defendants in allowing the minor plaintiff to operate the alleged machinery without any supervision. The Court, however, refused to grant an order for the dismissal of the claim of the plaintiff under s. 26 of the Civil Liability and Courts Act 2004 notwithstanding the first false statement of claim filed by the plaintiff. The Court held that the misleading evidence given by the plaintiff at the trial was not intentional and the same was done under the influence of the third named defendant and thus, provisions of s. 26 of the Act of 2004 could not be used against him as the plaintiff had taken all the necessary steps to rectify the mistake at the hearing of the present case.

JUDGMENT of Mr. Justice Hanna delivered on the 10th day of December, 2015.

1 This case arises from an injury which the plaintiff suffered on the 26th day of June, 2003. The incident occurred at a quarry at Crislaghkeel, Burnfoot, Co. Donegal. The quarry belonged to the defendants or one or some of them. No issue concerning the ownership of the quarry surfaced in any meaningful way at the hearing. By any yard stick, the plaintiff was occasioned a serious injury to his right foot. As a consequence, following multiple surgeries and rehabilitative treatment, he is left minus most of his right foot. However, notwithstanding significant educational shortcomings and aided by an apparently keen work ethic and the utilising of prostheses he is able to engage in full-time employment, currently in the United States of America.

2 The plaintiff, whose date of birth is the 24th August, 1985, was but seventeen years of age when this misfortune befell him.

3 Beyond the very bald and limited narrative there rages a sea of controversy between the parties as to what, in fact, did happen on that day. There is dispute as to the plaintiff's entitlement to be on the said premises, the nature of and legal status of his relationship with the defendants. A central question arises as to how the plaintiff came to be injured in the first place.

4 The plaintiff first commenced proceedings against the first to fourth named defendants inclusive by plenary summons on 21st January, 2004. These proceedings were discontinued and a second set of proceedings, those with which we are directly concerned, commenced on the 30 April, 2004 citing the present defendants and the Motor Insurers Bureau of Ireland as an additional party.

5 The statement of claim was delivered on the 1st March, 2006. It alleged that the alleged accident occurred during the course of the plaintiff's employment with the second, third and fourth named defendants at the quarry aforesaid. The first named defendant drove the other defendant's lorry over the plaintiff's right foot, or so the statement of claim alleges. The statement of claim goes on to seek damages from the first to fourth named defendants and to satisfy such judgment against the then fifth named defendant, the Motor Insurers Bureau of Ireland (the ‘Bureau’) pursuant to the agreement between that organisation and the Minister for the Environment dated the 21st day of December, 1988. As to how the liability of the Bureau might arise, the statement of claim is silent. The statement of claim was supported by an affidavit of verification purportedly sworn by the plaintiff on the 5111 September, 2006.

6 The Bureau entered an appearance on the 5th October, 2004. The second named defendant did so on the 20th December, 2004. There was a subsequent change of solicitor representing the Bureau.

7 A significant landmark in the case is the order of this Court made on the 18th May, 2009 by Cooke J. striking out the claim against the Bureau. Effectively from that date the involvement of the Bureau's solicitors, Messrs. Peter J. Sweeney, ceased. They had acted, in effect, as the sole solicitors for the defence. The application which led to that order and the circumstances leading up to it are of some relevance to this entire matter.

8 Without going into minute detail, Messrs. Sweeney sought particulars of the circumstances of the accident both as to how and where same occurred. The insurance company concerned (Quinn Insurance) who had instructed Messrs. Sweeney conducted its own investigations into the claim. Apart from the significant question as to whether or not the alleged accident, assuming it was a road traffic accident, occurred in a public place, important questions also arose as to the circumstances in which the injury was caused to the plaintiff.

9 It seems that the plaintiffs account of what had occurred, to use the colloquialism, had started ‘ringing alarm bells’. For example, the statement of claim rather blandly stated that the lorry ran over the plaintiffs right foot. It seems that the plaintiff expanded somewhat on that otherwise bald narrative by telling a doctor who examined him on behalf of the defendants as then represented that he was intending to get into a lorry on the front side seat beside the driver. Apparently the driver did not see him as he was walking up the side of the lorry and the driver proceeded to drive off. The wheel of the lorry went over his right foot. The plaintiff told another doctor that he was ‘about to climb in the passenger side of the lorry’.

10 It was submitted at the application to strike out the proceedings against the bureau that the description of the accident proffered by the plaintiff was completely at variance as to what was noted in the accident and emergency department in Derry where the plaintiff went for treatment. In an affidavit grounding the aforesaid application to strike out, Mr. Patrick J. Sweeney, solicitor, highlights the following.

(a) An entry in the Accident and Emergency Department records stating ‘works in quarry, caught right foot on the digger …. digger ran over right foot extensive injury to foot.’

Reference made to a further narrative describing a digger/tractor running over the plaintiff's foot.

(b) The statement of Sergeant Daniel Devlin, member of An Garda Siochana of Moville Garda Station, Moville, Co. Donegal was also submitted to the Court. Sgt. Devlin says that he encountered the plaintiff while on duty on the 31st August, 2003 and that plaintiff told him that he had been working in the quarry and that a track machine has caused the injury to him.

11 It would appear that the Court took the view that the accident the subject matter of the proceedings had not occurred in a public place and, more specifically, on the public highway. Nor was the vehicle involved one which attracted compulsory insurance. Therefore, liability on the part of the Bureau did not arise and the proceedings against it were struck out.

12 Where did this leave the plaintiff's narrative to date? This we discover in the amended statement of claim which was furnished by the plaintiff on the 11th March, 2014. Out goes reference to the lorry and its registration number. In its place is substituted the single word ‘digger’. There is no other material alteration to the narrative set forth in the statement of claim as to what occurred. Of course, more than the simple description of the vehicle involved had changed. The whole picture had changed from that of a case of negligent driving of a motor lorry to the negligent operation of a substantial piece of machinery in a quarry. The physical location itself had not changed but took on the heightened significance in that the plaintiff was a minor and was employed in a quarry and in circumstances governed not only by common law but by a body of statutory and regulatory law designed to afford protection to the plaintiff as a minor, as an employee and, indeed, as a member of the public.

13 In brief terms, the case made by the plaintiff in the form in which it came on before me alleged that he was employed by the second, third and fourth named defendants. During the course of his employment and while approaching a fellow worker (also under age) the latter caused or permitted the track of a heavy machine to go over the plaintiffs right foot causing him to suffer the injury in question. This was a clear case of negligence and breach of statutory duty. The previous story about the involvement of the lorry was a fiction conceived, distilled and promoted by the defendants with a view to engaging the involvement of an insurance company to meet what was clearly going to be a substantial claim for damages arising from the injuries suffered by the plaintiff.

14 Not so, say the defendants. The plaintiff was not employed by them at all. In an amended defence on behalf of the second, third and fourth named defendants' which was delivered on the 19th March, 2015 it was alleged that the plaintiff had occasionally visited the quarry prior to the accident and had...